Academic journal article Law & Society Review

Cultural Spillovers: Copyright, Conceptions of Authors, and Commercial Practices

Academic journal article Law & Society Review

Cultural Spillovers: Copyright, Conceptions of Authors, and Commercial Practices

Article excerpt

Economists, sociologists, and legal theorists adopt disparate assumptions and make different predictions about what sustains markets, but they all agree that property-rights law is essential (e.g., Campbell and Lindberg 1990; North 1990; Polanyi 1944; Posner 2010). Property-rights law determines the technical limitations on markets by defining rules governing ownership and control over production, products, and modes of exchange. Such legal-technical effects determine what can be sold, who can sell and buy, who can profit from selling, and under what circumstances products can be sold. Legal scholars and sociologists also argue that property-rights law creates cultural constraints on markets: cognitive schemas about buyers' and sellers' roles, their relative power, and the nature of their exchanges (e.g., Edelman, Uggen, and Erlanger 1999; Fligstein 2001; Gordon 1984). Thus, property-rights law determines both what is feasible (technical constraints) and what is acceptable (cultural constraints). In particular, intellectual-property law gives producers control over the copying of their innovations; such control, in turn, spurs the creative production necessary for markets to thrive.

In addition to culture deriving from law, legal scholars and sociologists recognize that cultural factors, such as norms and value systems, can substitute for formal law. For example, people often eschew formal law and rely instead on informal mechanisms such as customs, norms, and standard practices to guide contract renegotiations (Macauley 1963), resolve property disputes (Ellickson 1991), and safeguard workers' rights (Edelman, Uggen, and Erlanger 1999). Similarly, legal scholarship examining "negative spaces" in intellectual-property law1-such as markets for fashion, recipes, and open-source software, all of which thrive in the absence of intellectual-property protection-has shown that social norms can stand in place of formal law (e.g., Raustiala and Sprigman 2006; Buccafusco 2007; Sprigman and Raustiala 2012). In the absence of intellectual-property protection, producers can copy each other's products without legal repercussions. Yet social norms often constrain copying and foster creativity (e.g., Buccafusco 2007; Fauchart and von Hippel 2008).

In this article, we apply negative-spaces theory to analyze markets for literature in America from the mid-eighteenth century, when copyright law and markets for literature were not well developed, to the mid-nineteenth century, when copyright was well understood and markets for literature were thriving. During this period, copyright law applied to part of the market for literature in books: the book industry was a positive space for domestic work but a negative space for foreign work, since American law protected domestic books but excluded foreign books from protection. And although magazines were important forums for literary expression (e.g., Gardner 2012; Okker 2003), the magazine industry was a negative space because copyright law did not cover magazines (Homestead 2005; McGill 2003; McGill in Gross and Kelley 2010; Slauter 2015). We show that for domestic literature, books and magazines shared cultural conceptions about authors and intellectual-property rights, and they came to share commercial practices. Demonstrating such cultural spillovers extends negative-spaces theory in new directions.

We build on sociological and sociolegal theories holding that law shapes cultural conceptions of market participants (here, authors as producers of literature) and market products (here, literature), which in turn shape how law is used (e.g., Edelman, Uggen, and Erlanger 1999; Fligstein 2001; Macaulay 1963). This work suggests that cultural conceptions of producers and products, which co-evolve with the law inside positive spaces (where the law applies), can spill over to related negative spaces (where the law does not apply) and therefore shape practices in both positive and negative spaces. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.